Moore v. University of Houston-Clear Lake

The trial court erred in granting the University of Houston-Clear Lake's (UHCL) plea, because the appellant's pleadings demonstrate he initiated action under UHCL's grievance procedures; UHCL's jurisdictional plea was an improper procedural device to challenge the timeliness of his Whistleblower Act claims.

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Click here for the full text of this decision FACTS:David Moore was fired as a University of Houston-Clear Lake police officer on Sept. 14, 2000, and filed a Whistleblower lawsuit against the university on Jan. 25, 2001. UHCL filed a plea to the jurisdiction, arguing: 1. because Moore failed to notify UHCL he was appealing his termination “based on whistleblower protection,” he did not initiate a grievance as required under the Whistleblower Act, and therefore, his suit was untimely; 2. alternatively, Moore initiated the appeals process on Oct. 19, 2000, rendering his suit untimely; and 3. even assuming Moore initiated an appeal of his termination in September 2000, his suit was untimely. The trial court granted the university’s plea, and Moore now appeals. HOLDING:Reversed and remanded. The court notes at the start that prior case law has held that a defendant’s challenge to the timeliness of a Whistleblower Act lawsuit is an affirmative defense, rather than a jurisdictional defect to be challenged through a plea to the jurisdiction, and two of three arguments raised by UHCL in its plea to the jurisdiction could be considered to be based on limitations. Nonetheless, because UHCL also alleges that Moore completely failed to initiate an appeals procedure that failure may be considered to be a jurisdictional fact, the court says it will address that portion of UHCL’s claim as though properly raised in its plea. The court confirms that the Whistleblower Act requires a lawsuit to be initiated “not later than the 90th day after the date” the alleged adverse personnel action happened or was discovered. The court notes that after his termination, Moore sent an e-mail and a handwritten note to the human resources director to say he wanted to appeal. Moore also presented evidence that there was a hearing on Oct. 19 and that it was recommended to the university president at that time that his termination be upheld. The investigation closed on Oct. 27 or Nov 8. This is enough evidence to establish that the university determined that Moore timely filed an appeal of his termination and the appeals process had come to an end. The court rejects UHCL’s assertion that, because Moore did not specifically advise that he was appealing his termination on Whistleblower Act grounds, UHCL did not have an opportunity to investigate those allegations. Although a public employee must initiate action under his employer’s grievance or appeals procedures before filing suit against the employer, the act does not dictate what actions are required to “initiate” the appeals procedure, the court observes. The act does not require that the employee use any particular words when filing his grievance, nor does it require he state that his appeal is based on the Whistleblower Act. Regardless, the court holds, the evidence reflects that UHCL had notice of Moore’s whistleblower claims prior to his termination, thus alerting UHCL of Moore’s potential whistleblower claims. At least a week prior to terminating him, the university knew that Moore had previously reported various wrongdoings by the university police chief. Finally, even assuming that UHCL did not have notice of Moore’s whistleblower claims prior to his termination, UHCL acknowledges that Moore asserted he was terminated in retaliation for his whistleblowing activities at his grievance hearing on Oct. 19. While the act contemplates giving a governmental employer an opportunity to correct its own errors by resolving disputes before being subjected to the expense and effort of litigation, there is nothing in the record to indicate that UHCL was prevented from investigating Moore’s allegations after he made them at the grievance hearing. Instead, the record reflects that on that same date, the panel recommended to UHCL’s president that Moore’s termination be upheld. OPINION:Eva M. Guzman, J.; Yates, Edelman and Guzman, JJ.

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